Citation Nr: 9906448
Decision Date: 03/09/99 Archive Date: 03/18/99
DOCKET NO. 94-00 060 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to an increased rating for a bunionectomy of
the right foot involving the first metatarsal phalangeal
joint, currently evaluated as 10 percent disabling.
2. Entitlement to a compensable evaluation for atrophy of
the left testicle.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Dennis F. Chiappetta, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1981 to July
1989.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a May 1993 RO rating action which denied the
veteran's claim for a rating in excess of 10 percent for his
service-connected bunionectomy of the right foot and granted
the veteran's claim for service connection (with an
noncompensable rating) for atrophy of the left testicle. The
veteran is also entitled to special monthly compensation on
account of loss of use of a creative organ.
The Board remanded the veteran's case for additional
development in November 1995.
A transcript of the veteran's January 1997 RO hearing is on
file.
FINDINGS OF FACT
1. The veteran's service-connected right foot bunionectomy
has resulted in a well-healed nontender scar, complaints of
painful motion of the right great toe, with X-ray evidence of
mild hallux valgus deformity and degenerative joint disease
at the metatarsophalangeal joint.
2. The veteran has an atrophied left testicle and a normal
right testicle.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 10 percent for the
veteran's service-connected bunionectomy of the right foot
have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West
1991 & Supp. 1998); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a,
Diagnostic Codes 5003, 5010, 5280 (1998).
2. The criteria for a compensable rating for atrophy of the
left testis have not been met. 38 U.S.C.A. §§ 1155, 5107,
7104 (West 1991 & Supp. 1998); 38 C.F.R. §§ 4.1, 4.7, 4.115,
Diagnostic Code 7523 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Facts
Service medical records show that the veteran underwent a
bunionectomy and osteotomy of the first metatarsal of the
phalangeal joint of the right foot in May 1989.
In September 1989, the veteran was granted service connection
with a noncompensable rating for a bunionectomy of the first
metatarsal phalangeal joint of the right foot. A
noncompensable evaluation was assigned.
On VA examination in August 1990, the veteran reported that
he had trouble performing physical activity other than
walking due to his right foot. The pain was reported to be
constant, but increased with physical activity. On physical
examination, the examiner reported that the veteran had a
seven and one-half centimeter scar located medially over the
first metatarsophalangeal joint. Other findings included:
pinpoint tenderness over the first metatarsal; decreased
range of motion to plantar flexion; and poor attempts by the
veteran with motor strength testing and plantar dorsiflexion.
The VA physician noted that there was no atrophy noted and
that tenderness was elicited with active movement of the
first toe. The diagnosis included right foot pain in the
area of the first metatarsal.
In a September 1990 decision, the RO granted an increased
rating to 10 percent for the veteran's bunionectomy.
In October 1990, the veteran submitted a claim for service
connection for a ruptured testicle later described as atrophy
of the left testicle.
On a December 1990 VA examination report it was noted that
the veteran fell and injured his left testicle during
service. He reported that he had inservice treatment and
that his left testis had become smaller since that time. On
physical examination, it was reported that the veteran's left
testis was much smaller than the right, about the size of a
small grape and very soft. The diagnosis included marked
atrophy of the left testicle with a history of trauma in
service.
On VA examination in March 1991, the veteran reported
complaints of a missing testicle and occasional discomfort.
On examination of the genitourinary system, it was noted that
the veteran was treated after a fall and injury to the
testicle during service two years ago. No surgery was
performed. On physical examination, the right testis was
reportedly normal in size and the other testis was noted to
be smaller. The diagnosis was smaller left testis (history
of trauma).
In a May 1993 letter, private physician Robert P. Bloch,
D.P.M., stated that the veteran reported with the chief
complaint of extreme pain at the right bunion joint beginning
in 1989. Dr. Bloch noted that the right bunion joint has
rigidity to the point of hallux limitus. He reported that
the veteran had sharp pain in this joint especially on rainy
or humid days. Dr. Bloch stated that it was his belief that
the veteran needed further correcting of the bunion joint as
well as biomechanical orthotics to control his gait, prevent
recurrence, and accommodate his subtalar joint abnormality.
In May 1993, the RO denied the veteran's claim for a rating
in excess of 10 percent for his service-connected
bunionectomy of the right foot and granted the veteran's
claim for service connection (with an noncompensable rating)
for atrophy of the left testicle.
In his August 1993 notice of disagreement, the veteran
asserted that his foot condition had become worse and now
included pain and limitation in mobility. Regarding his
atrophied testicle, the veteran reported that the condition
was painful and that it greatly reduced his chances of
fathering children.
In November 1995 the Board remanded the veteran's case for
additional development to include a new examination.
In a December 1996 statement, Dr. Bloch reported that in May
1993, the veteran's chief complaint was a painful right
bunion joint. Sequela from the correction was reported to
include hallux limitus, i.e. degeneration of the bunion joint
which freezes the motion of the joint and causes an inability
to push-off on the big toe adequately. Dr. Bloch noted that
X-rays taken at this time corroborated the clinical diagnosis
and that the veteran was prescribed an anti-inflammatory
medication and informed of the procedure for a total right
bunion joint replacement utilizing a Silastic implant.
During his January 1997 RO hearing, the veteran reported that
his inservice bunionectomy left him with reduced mobility of
the right big toe, painful motion necessitating orthotics,
and a dead big toenail which will have to be completely
removed. Regarding his left testicle the veteran reported
that it had atrophied after his inservice injury to the point
where it was now small as a grape and very soft.
On VA examination of the feet in February 1997, the veteran
noted that his bunionectomy left him with a great deal of
pain in the big toe. The veteran reported that prolonged
standing, walking, climbing, and cold made his foot pain
worse. Other foot problems reportedly included calluses,
fungated toenails, and flat feet. On physical examination,
the examiner found a well-healed nontender scar of the right
foot, decreased flexion and extension of the great toe and
all of the toes, marked decrease in the longitudinal arch,
and no evidence of swelling or tenderness. It was reported
that the veteran walked with a mildly everted slow gait. The
diagnosis included postoperative bunionectomy of the right
first metatarsal phalangeal joint, multiple callosities, and
pes planus. The impression on X-ray was old trauma involving
the proximal phalanx of the great toe which had been
surgically stabilized, mild hallux valgus deformity and
hammertoe deformity of the foot.
The February 1997 examination of the urinary system noted
that the veteran's testes were descending with the right
being greater than the left. Specific examination revealed
that the veteran had no frequency of urination, no pain or
tenesmus, and no incontinence. The diagnosis was voiding
dysfunction.
On VA examination in August 1997, the veteran reported an
inservice injury resulting in a scrotal hematoma. Since the
injury, it was noted that the veteran has reported complaints
of infertility, prostatitis, decreased ejaculate volume, hot
flashes, and a vague suprapubic discomfort that may radiate
to the tip of his penis. Objective findings included a
normal right testicle, a markedly atrophic left testicle, a
normal epididymis, and bilateral palpable vas deferens. The
examiner noted a mild gynecomastia which was reportedly
unchanged for many years and had no palpable adenopathy.
Findings included no gross hematuria, no pain or tenesmus and
no incontinence, but with some post void dribbling. The
diagnosis was left testicular atrophy pending further study.
In the addendum, the examiner reported that the results of
studies, including a voiding cystourethrogram, a semen
analysis, an infertility work-up, a urinalysis, a hormonal
profile, and a semen morphology, were all normal. The
examiner noted that with these results in mind, his opinion
was that the veteran had only left testicular atrophy.
Findings on an August 1998 VA examination of the feet
included a mild degree of pes planus, no deviation from the
midline, no evidence of callosity on the sole of the foot,
and a well-healed scar from prior bunion surgery. The
examiner reported that the veteran had a 10 degree hallux
valgus of the left toe. Range of motion of the right toe was
reportedly diminished by about 10 degrees in flexion and
extension. The impression included mild bilateral pes planus
and history of a bunionectomy. X-rays revealed mild
degenerative joint disease of the metatarsophalangeal joint.
In a September 1998 addendum, it was noted that the veteran's
pes planus was due to a congenital form of pes planus. The
examiner noted that the veteran did not have callosities,
that he did not have medial deviation of the Achilles'
tendon, and that the forepart of the foot was not abducted.
II. Analysis
The veteran contends that the disability due to his service-
connected bunionectomy is more disabling than reflected by
the current 10 percent rating. He also asserts that the
disability due to the atrophy of his left testicle warrants a
compensable rating.
The veteran's claims are well grounded within the meaning
of 38 U.S.C.A. § 5107(a), in that they are not inherently
implausible. The Board is also satisfied that all relevant
facts have been properly developed. Post-service medical
records have been associated with the veteran's claims file
and examinations of the feet and testes have been performed
as recently as 1998 and 1997, respectively. The Board finds
the latest VA examinations were adequate concerning the
issues at hand and that there is no indication that there are
other relevant records available which would support the
veteran's claims. Therefore, no further assistance to the
veteran is required in order to comply with the duty to
assist mandated by 38 U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. Separate diagnostic codes identify the
various disabilities. VA adjudicators, in granting an
increased rating, must consider the criteria for the next
higher rating, and explain why a higher rating is not
warranted. 38 C.F.R. § 4.7 (1998); see Clark v. Derwinski, 2
Vet.App. 166 (1992). Where there is a question as to which
of two evaluations shall be applied, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating. 38
C.F.R. § 4.7.
In every instance where the schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31.
The history of the veteran's disorders has been noted in
consideration of the veteran's claims. Schafrath v.
Derwinski, 1 Vet.App. 589 (1991). However, the latest
medical evidence is the most relevant, as the present level
of disability is of primary concern when reviewing the claim
for an increased evaluation for the right foot bunionectomy
residuals. Francisco v. Brown, 7 Vet.App. 55 (1994).
A. Entitlement to an increased rating for a bunionectomy of
the right foot involving the first metatarsal phalangeal
joint, currently evaluated as 10 percent disabling
A review of the record indicates that the veteran has had a
long history of foot problems dating back to service.
Service connection, however, has only been established for a
bunionectomy of the right foot. According to recent medical
evidence on file, the disabilities reasonably attributed to
the veteran's service-connected right foot bunionectomy
include only the nontender well-healed scar, limitation of
motion in the right great toe due to pain, mild hallux valgus
deformity, and X-ray evidence of mild degenerative joint
disease. See the February 1997 and August 1998 examination
and X-ray reports.
The Board notes that the veteran has other foot problems
including calluses, fungated toenails, hammer toe
deformities, and flat feet which, according to VA
examinations of 1997 and 1998, were not shown to be related
to the veteran's inservice injury or corrective bunionectomy.
The disability due to the veteran's service-connected foot
problem is currently rated as 10 percent disabling under
38 C.F.R. § 4.71a, Diagnostic Code (DC) 5280 for hallux
valgus. Under this provision, the maximum disability rating
of 10 percent is in order when the hallux valgus is severe,
if equivalent to amputation of the great toe, or when the
hallux valgus is operated on with resection of the metatarsal
head. Since no higher rating is available under this
provision, a rating in excess of 10 percent under DC 5280 is
not possible.
As a general matter, in evaluating musculoskeletal
disabilities, the VA must determine whether the joint in
question exhibits weakened movement, excess fatigability, or
incoordination, and whether pain could significantly limit
functional ability during flare-ups, or when the joint is
used repeatedly over a period of time. See DeLuca v. Brown,
8 Vet.App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (1998). In
this case, the 1997 and 1998 VA examination reports indicated
a 10-degree limitation of motion in the flexion and extension
of the big toe and complaints of pain that increased with
use. While the veteran's disability produces pain and slight
limitation of motion of the right big toe, the Board notes
that a 10 percent evaluation also is applicable with severe
hallux valgus which is equivalent to amputation of the great
toe. It would be a violation of the 38 C.F.R. § 4.14
prohibition against pyramiding to compensate painful motion
of the great toe when a compensable rating has already been
provided for disability equivalent to amputation of the great
toe. Based on this evidence, the Board finds that an
increased rating based on functional loss due to painful
motion as a result of the veteran's service-connected
disorder is not warranted.
If the veteran's right foot disability is evaluated as
traumatic arthritis under DC 5010, it is to be rated as
degenerative arthritis under DC 5003. Under Code 5003,
degenerative arthritis established by X-ray findings is rated
on the basis of limitation of motion under the appropriate
diagnostic code for the specific joint involved. Here, the
schedule does not provide a separate rating for limitation of
motion of the great toe. With noncompensable limitation of
motion, DC 5003 provides a 10 percent evaluation for each
major joint or group of minor joints affected. In the
absence of limitation of motion, a 10 percent evaluation is
assigned with X-ray evidence of involvement of two or more
major joints or two or more minor joint groups. A 20 percent
evaluation may be assigned with involvement of two or more
major joints or two or more minor joint groups with
occasional incapacitating exacerbations. Under 38 C.F.R.
§ 4.45, multiple involvements of the interphalangeal,
metatarsal and tarsal joints of the lower extremities are
considered groups of minor joints ratable on a parity with
major joints. In the present case, only the
metatarsophalangeal joint is involved. As this does not
constitute a group of minor joints, there is no basis for
assigning a rating in excess of 10 percent on the basis of
arthritis.
While the examiner noted that the veteran used orthotics and
walked with a mildly everted slow gait, the Board finds that
the record does not show that such was due to the veteran's
service-connected bunionectomy. To the contrary, the
numerous nonservice-connected foot disorders noted above make
such an assumption speculative at best.
The preponderance of the evidence shows that the impairment
from the service-connected right foot disorder warrants no
more than a 10 percent rating. As the preponderance of the
evidence is against his claim, the benefit-of-the-doubt
doctrine does not apply, and an increase in the current
disability rating must be denied. 38 U.S.C.A. § 5107 (b);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
B. Entitlement to a compensable evaluation for the atrophy
of the left testicle.
The veteran's service-connected atrophy of the left testicle
is currently rated as noncompensable under 38 C.F.R. § 4.115,
DC 7524. Under this provision, a noncompensable rating is
warranted when only one testis is atrophied and a 20 percent
rating is provided when both testicles are atrophied.
According to the most recent medical evidence on file, the
veteran's August 1997 VA examination report, the veteran has
a normal right testicle and a markedly atrophic left
testicle. Since the veteran has a healthy right testicle and
only one atrophied testicle, an increased rating is not
possible under DC 7524.
While other Diagnostic Codes allow for higher ratings for
additional disorders of the genito-urinary system, the
veteran has only been granted service connection for an
atrophied left testicle. Additionally, the Board notes that
normal results found after numerous medical studies indicate
that the veteran's atrophied left testicle is not productive
of additional ratable disability.
The Board has considered whether the veteran is entitled to a
"staged" rating for his service-connected disability as
prescribed by the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999). At no time since the veteran filed
his claim for service connection has the service-connected
disorder been more disabling than currently rated.
As the preponderance of the evidence is against granting the
veteran's claim, the benefit-of-the-doubt doctrine does not
apply, and an increase in the current (noncompensable)
disability rating must be denied. 38 U.S.C.A. § 5107 (b);
Gilbert, supra.
In making its decision concerning the veteran's claims, the
Board has considered the veteran's hearing testimony. While
his testimony is considered credible insofar as he described
his current symptoms and his beliefs concerning the merits of
his claims, he is not competent to testify to medical
diagnosis or findings.
ORDER
A rating in excess of 10 percent for bunionectomy of the
right foot involving the first metatarsal phalangeal joint is
denied.
A compensable rating is denied for atrophy of the left
testicle.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
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